01-1248 Osman v. Phipps, et al. (57260)

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“In this case, because the circuit court did not make ‘a decision on the merits’ after remand, its Sept. 26, 2000 document does not constitute a judgment, and the award of statutory interest and double costs, therefore, was in error.”

Further, we agree with defendant that the circuit court erred in awarding attorney’s fees for its pursuit of what plaintiff deemed a frivolous defense under Wis. Stat. sec. 814.025.

“Enterprise argues that, for numerous reasons, its defense of this case cannot be considered frivolous. Enterprise points to many specific evidentiary factors and legal theories supporting its potential defenses to Osman’s claim. Enterprise also emphasizes that, at most, the time during which it allegedly pursued a frivolous defense was limited to the approximate six-month period between remand, which followed the supreme court’s denial of its petition for review, and its offer to settle the case for $15,000. And Enterprise notes that, even during this period, it was continuing to investigate-trying to locate Phipps to learn his version of the accident, and trying to obtain information about Osman’s circumstances and claim for loss of wages and earning capacity.

“On appeal, Osman offers little argument in response to Enterprise’s contentions. While he maintains that ‘[i]t is clear’ that counsel for Enterprise ‘obviously knew, and if not, certainly should have known, that there was no reason for them to pursue this outrageous defense’ regarding Phipps’ negligence, Osman offers nothing to suggest that it is ever unreasonable for an insurer to try to locate a co-defendant driver in order to investigate the circumstances of an accident.”

Order reversed.

Recommended for publication in the official reports.

Dist I, Milwaukee County, White, J., Schudson, J.

Attorneys:

For Appellant: Amy J. Doyle, Milwaukee; Jeffrey T. Nichols, Milwaukee

For Respondent: Allen Silverstein, Milwaukee